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Burch v. Burch10/7/2005
Affirmed.
Before PIERRON, P.J., CAPLINGER, J., and BUKATY, S.J.
In this personal injury lawsuit involving an automobile and deer accident, Michele D. Burch, individually and as the parent of Georgia and Grace Burch (collectively Plaintiffs), appeals the district court's granting of a directed verdict in favor of Michele D. Burch, in her capacity as administrator of the estate of her deceased husband and the Estate of Darrell Burch (collectively Defendants). The Plaintiffs argue the court erred in taking the case away from the jury by granting a directed verdict because there was evidence sufficient to find Darrell was negligent in his operation of the vehicle. We disagree and affirm.
Darrell and Michele Burch and their 5-and 6-year-old daughters, Georgia and Grace, returned from a week long vacation in Cabo San Lucas to Denver International Airport the night of November 23, 2000. On the trip from Denver to their home in Augusta, Kansas, Darrell was driving east on I-70 when their vehicle hit a deer at approximately 2:15 a.m. on November 24. At the time, Michele, Georgia, and Grace were lying down in the back of the vehicle asleep. All four occupants were ejected from the vehicle. Darrell was killed. There were no witnesses to the accident. The first people to the scene reported they had only seen the vehicle flip. The police accident report stated as follows:
"Vehicle no. 1 was Eastbound on I-70 in the area of mile post 200.5 when it struck a deer then entered the median and rolled one complete time ejecting all occupants. The vehicle came to rest on its wheels facing South in the median as indicated in the diagram.
"No sign of alcohol or drugs at the scene or in the vehicle. Blood was drawn from the driver.
"The driver was dead at the scene. It appeared that he was partially ejected, rolled on by the vehicle then ejected completely. The wife and two little girls were ejected also. They were transported to Russell Regional Hospital and then to Wichita via ambulance.
"There were no skidmarks at the scene only one scuff mark prior to vehicle entering the median. Debris from vehicle no. 1 was located on the shoulder of the road where the deer was found in the South ditch.
"The witness listed was westbound and saw the vehicle rolling - He was first person on the scene.
"Exact point of impact where vehicle no. 1 struck deer could not be determined, but was estimated by blood spots on the roadway to be eastbound driving lane about 403 feet west of where vehicle no. 1 came to rest."
Michele, on behalf of herself and her two daughters, filed a negligence lawsuit against Darrell's estate and Michele as administrator of the estate. Michele was the only witness to testify. The parties stipulated to the police accident report, and it was the only evidence presented concerning the accident. At the close of the Plaintiffs' case, the trial court granted a directed verdict in favor of the Defendants. The trial court concluded there was no evidence of negligence on Darrell's part such as would warrant the case to proceed to the jury for deliberation.
The Plaintiffs appeal.
The Plaintiffs argue there was sufficient evidence to allow the jury to decide the case and the district court erred in granting a directed verdict to the Defendants.
"'When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A si
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